Calgary Sun

December 30, 2005

On Wednesday last week, the Supreme Court decided to legalize "swingers" clubs, where people go for orgies with consenting adults as young as 14.

The ruling opens wide the legal door to sex clubs, gay bath houses, helpful counselling in high schools, and other delights.

Case by case, we will read about all these for years to come, as police and prosecutors try and fail to prove them "objectively harmful to society."

But why do we allow judges to write and rewrite our laws?

Laws are supposed to be passed by elected law-makers, not unelected judges.

If the judges had to get "consent of the governed" on this clanger, they'd be out of luck.

Imagine yourself sitting at home, watching TV in the bosom of your family, when through the window you glimpse a woman in a scarlet robe trimmed with white fur jogging up to your front door.

"Hi, there," she says, briskly shaking your hand without invitation and thrusting a pamphlet in it.

"I'm Beverley McLachlin, chief justice of the Supreme Court of Canada, and I'm campaigning to legalize swingers' clubs."

"Say again? Is this about that accident last year at the playground?"

"Oh, heaven's sakes, no," she replies.

"Swingers' clubs are places where people pay to have group sex and exchange bodily fluids with strangers as young as 14."

"You want to ban these clubs?"

"No," she replies, "they're already banned. I say, let's legalize them! Can I count on your support?"

And that's the whole point.

McLachlin doesn't need our vote to change our laws.

The only vote takes place on the bench of the Supreme Court -- a democracy of nine lawyers.

In the "swingers" case, the vote went seven to two in favour of legalization.

Like everything else that's seriously wrong with this country, the main problem lies in the Constitution -- in this case, in the Charter of Rights, passed in 1982 by the Trudeau government.

The Charter states (in Section 24) judges may do with the law pretty well anything they see fit.

And so they do.

Previously, they were required, like everyone else, to respect the laws passed by Parliament.

The swinger decision (R v. Labaye) was based on a 1992 indecency ruling known as R v. Butler, in which her Supreme Majesty Queen Beverley (among other judges) decreed buying XXX-rated pornography a Charter right.

Although the Labaye ruling does not mention the Charter, it follows that if we have a constitutional right to watch explicit sex on video, we have a similar right to pay six dollars to watch or join live sex acts in public clubs.

The Supremes have now demanded proof such acts are "incompatible with the proper functioning of society."

Good luck.

These are obviously matters of judgement, of a sort that can't be scientifically proven.

For example, can you or I prove "objectively" that it's necessary to the "proper functioning of Canadian society" to segregate public washrooms, or ban sex in children's playgrounds?

No.

Unless you're a judge, you just know these things.

Society requires a certain social environment which legally limits sexual license, especially in public.

Well, get used to it, because there's more on the way.

In a speech to law students in New Zealand last month, Queen Beverley stated she is not bound even by our written Constitution.

Rather, when she feels so moved, she will apply "unwritten constitutional principles" as she perceives them.

There's a famous story about King John, the tyrant of England who was eventually forced at spear-point to sign the Magna Carta, our first constitutional document.

Until he was confronted by an enraged kingdom for overriding established laws, he had said, "The law is in my mouth."

In other words, the law is whatever I say it is.

Queen Beverley just said the same thing.

The law is whatever she decides.